Can Jim Acosta Shout “Fire!”?

Jim Acosta has no right to be in the West Wing. He doesn’t own it. That’s a no-brainer. If he is admitted, he has no right to shout “FIRE!” whenever he pleases; that’s discussed below. If he accosted Trump in any number of other ways that flouted comity, he’d likewise wear out his welcome and be subject to expulsion. Comity means “courtesy and considerate behavior toward others”. His lack of it led to cancellation of his invitation. A press pass is simply an invitation. It can be revoked. The people running the press conference can discriminate on grounds of a lack of comity, a lack that defeats the purposes for which the press conference has been called. They can also discriminate arbitrarily, although the political price for doing so will be high. People do expect there to be reasons for expulsion, and there are in fact many improper behaviors that people will accept as justifiable, such as cursing out Trump, not shutting up, shouting him down, interrupting, making wisecracks, unfurling banners, grabbing the microphones, wearing provocative clothing, etc.

The media do not have a right to a press conference there or anywhere else in the first place. If they are invited, does any one of them have a right to shout “FIRE!” when there is no fire? Clearly not. Why not? It’s because it creates an aggression. It creates the danger of panic and injury contingent on such panic. It also sets in motion the diversion of firefighters and security from more urgent tasks and duties, creating secondary unnecessary risks. The third effect is confusion. If people can shout “FIRE!” at will, how will people know if it’s for real or not? False alarms will undermine the effectiveness of a genuine warning. A theater owner has a right to forbid many kinds of speech, including shouting “FIRE!”. The White House officials similarly have a right to forbid many kinds of speech and other behaviors on that property.

The original Supreme Court decision, unanimous at that, in which Holmes used the “shouting fire” analogy was very, very bad, it should be strongly noted. It stopped a man (Schenck) from distributing flyers that opposed the draft in World War I. It’s bad because of the grounds it invoked, which were that this distribution was a “clear and present danger” to the government’s war-making efforts. This sacrificed the First Amendment. There could not have been a greater violation of free speech than this horrible judgment. The case of Julian Assange is very similar in its injustice. The First Amendment rules out a government law against free speech or a free press. Schenck was stopped from speaking. No amount of Supreme Court twisting and turning can change the fact that they made up grounds for invoking the law (the Constitution) itself against free speech. Those fake grounds were “clear and present danger”. The whole thing is disgusting.

If speech upon the property of others is restricted, it’s because it’s the property right of those in control of the property. They may have reasons or no reasons at all for the restrictions. They don’t need to kowtow to those whom they invite in. An invitation can be conditional upon rules of behavior imposed by the property owner. The Bill of Rights nowhere guarantees that you have a right to exercise your freedom to speak when on the property of others. Although Murray Rothbard made this clear decades ago, the knowledge hasn’t penetrated our society yet.

Judge Timothy J. Kelly has issued a temporary restraining order that reinstates Acosta. It was a great day for misunderstanding the First Amendment, the Fifth Amendment and the rights of property owners. Trump’s White House doesn’t have to prove that Acosta has been accorded due process, as the judge thinks. Due process doesn’t even enter into the equation at all because Acosta has no rights at all in this situation.

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12:54 pm on November 16, 2018